Ilusorio V CA

9/14/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 393
VOL. 393, NOVEMBER 27, 2002 89

Ilusorio vs. Court of Appeals
*
G.R. No. 139130. November 27, 2002.
RAMON K. ILUSORIO, petitioner, vs. HON. COURT OF

APPEALS, and THE MANILA BANKING
CORPORATION, respondents.
Civil Law; Damages; Negligence; To be entitled to damages,

petitioner has the burden of proving negligence on the part of the
bank for failure to detect the discrepancy in the signatures on the
checks.—On the first issue, we find that petitioner has no cause of
action against Manila Bank. To be entitled to damages, petitioner
has the burden of proving negligence on the part of the bank for
failure to detect the discrepancy in the signatures on the checks.
It is incumbent upon petitioner to establish the fact of forgery, i.e.,
by submitting his specimen signatures and comparing them with
those on the questioned checks. Curiously though, petitioner
failed to submit additional specimen signatures as requested by
the National Bureau of Investigation from which to draw a
conclusive finding regarding forgery. The Court of Appeals found
that petitioner, by his own inaction, was precluded from setting
up forgery.
Same; Same; Same; Negligence is the omission to do
something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or the doing of something which a prudent and
reasonable man would do.—As borne by the records, it was
petitioner, not the bank, who was negligent. Negligence is the
omission to do something which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a
prudent and reasonable man would do.In the present case, it
appears that petitioner accorded his secretary unusual degree of
trust and unrestricted access to his credit cards, passbooks, check
books, bank statements, including custody and possession of
cancelled checks and reconciliation of accounts.
Same; Same; Same; Petitioner’s failure to examine his bank
statements appears as the proximate cause of his own damage;
http://central.com.ph/sfsreader/session/00000165d5c926ae3d1f2d57003600fb002c009e/t/?o=False 1/13
Proximate Cause Defined.—Petitioner’s failure to examine his

bank statements appears as the proximate cause of his own
damage. Proximate cause is that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred. In the instant case, the bank was not shown to
_______________
* SECOND DIVISION.
90
90 SUPREME COURT REPORTS ANNOTATED
be remiss in its duty of sending monthly bank statements to

petitioner so that any error or discrepancy in the entries therein
could be brought to the bank’s attention at the earliest
opportunity. But, petitioner failed to examine these bank
statements not because he was prevented by some cause in not
doing so, but because he did not pay sufficient attention to the
matter. Had he done so, he could have been alerted to any
anomaly committed against him.
Same; Criminal Law; Forgery; When a signature is forged or
made without the authority of the person whose signature it
purports to be, the check is wholly inoperative unless the party
against whom it is sought to enforce such right is precluded from
setting up the forgery or want of authority.—True, it is a rule that
when a signature is forged or made without the authority of the
person whose signature it purports to be, the check is wholly
inoperative. No right to retain the instrument, or to give a
discharge therefor, or to enforce payment thereof against any
party, can be acquired through or under such signature. However,
the rule does provide for an exception, namely: “unless the party
against whom it is sought to enforce such right is precluded from
setting up the forgery or want of authority.” In the instant case, it
is the exception that applies. In our view, petitioner is precluded
from setting up the forgery, assuming there is forgery, due to his
own negligence in entrusting to his secretary his credit cards and
checkbook including the verification of his statements of account.
Same; Estoppel; Petitioner cannot hold private respondent in
estoppel for the latter is not the actual party to the criminal action.
—On the second issue, the fact that Manila Bank had filed a case
for estafa against Eugenio would not estop it from asserting the
fact that forgery has not been clearly established. Petitioner
cannot hold private respondent in estoppel for the latter is not the
actual party to the criminal action. In a criminal action, the State
is the plaintiff, for the commission of a felony is an offense against
the State. Thus, under Section 2, Rule 110 of the Rules of Court
the complaint or information filed in court is required to be
brought in the name of the “People of the Philippines.”
PETITION for review on certiorari of a decision of the

Court of Appeals.
The facts are stated in the opinion of the Court.

People’s Law Office for petitioner.
91
VOL. 393, NOVEMBER 27, 2002 91

Puyat, Jacinto & Santos and Asedillo and Associates for

private respondent.
QUISUMBING, J.:
1
This petition for review seeks to reverse the decision
promulgated on January 28, 1999 by the Court of Appeals
in CA-G.R. CV No. 47942, affirming the decision of the
then Court of First Instance of Rizal, Branch XV (now the
Regional Trial Court of Ma-kati, Branch 138) dismissing
Civil Case No. 43907, for damages.
The facts as summarized by the Court of Appeals are as
follows:
Petitioner is a prominent businessman who, at the time
material to this case, was the Managing Director of
Multinational Investment Bancorporation and the
Chairman and/or President of several other corporations.
He was a depositor in good standing of respondent bank,
the Manila Banking Corporation, under current Checking
Account No. 0609037-0. As he was then running about 20
corporations, and was going out of the country a number2 of
times, petitioner entrusted to his secretary, Katherine E.
Eugenio, his credit cards and his checkbook with blank
checks. It was also Eugenio who verified
3
and reconciled the
statements of said checking account.
Between the dates September 5, 1980 and January 23,
1981, Eugenio was able to encash and deposit to her
personal account about seventeen (17) checks drawn
against the account of the petitioner at the respondent
bank, with an aggregate amount of P119,634.34. Petitioner

did not bother to check his statement of account until a
business partner apprised him that he saw Eugenio use his
credit cards. Petitioner fired Eugenio immediately, and
instituted a criminal action against her for estafa thru
falsification before the Office of the Provincial Fiscal of
Rizal. Private respondent, through an affidavit executed by
its employee, Mr. Dante Razon, also lodged a complaint for
estafa thru falsification of commercial documents against
Eugenio on the basis of petitioner’s
_______________
1 Rollo, pp. 26-30.

2 Also spelled as “Catherine” in some parts of the record.
3 Rollo, p. 26.
92

4
statement that his signatures in the checks were forged.
Mr. Razon’s affidavit states:
That I have examined and scrutinized the following checks in

accordance with prescribed verification procedures with utmost
care and diligence by comparing the signatures affixed thereat
against the specimen signatures of Mr. Ramon K. Ilusorio which
we have on file at our said office on such dates,
xxx
That the aforementioned checks were among those issued by
Manilabank in favor of its client MR. RAMON K. ILUSORIO, . . .
That the same were personally encashed by KATHERINE E.
ESTEBAN, an executive secretary of MR. RAMON K. ILUSORIO
in said Investment Corporation;
That I have met and known her as KATHERINE E. ESTEBAN
the attending verifier when she personally encashed the above-
mentioned checks at our said office;
That MR. RAMON K. ILUSORIO executed an affidavit
expressly disowning his signature appearing on the checks
further alleged to have not 5
authorized the issuance and
encashment of the same . . . .
Petitioner then requested the respondent bank to credit

back and restore to its account the value of the checks
which were wrongfully encashed but respondent 6
bank
refused. Hence, petitioner filed the instant case.
At the trial, petitioner testified on his own behalf,

attesting to the truth of the circumstances as narrated
above, and how he discovered the alleged forgeries. Several
employees of Manila Bank were also called to the witness
stand as hostile witnesses. They testified that it is the
bank’s standard operating procedure that whenever a
check is presented for encashment or clearing, the
signature on the check is first verified against the specimen
signature cards on file with the bank.
Manila Bank also sought the expertise of the National
Bureau of Investigation (NBI) in determining the
genuineness of the signa-
_______________
4 TSN, October 6, 1983, p. 58.

5 Rollo, pp. 108-109.
6 Id., at p. 27.
93
VOL. 393, NOVEMBER 27, 2002 93

tures appearing on the checks. However, in a letter dated

March 25, 1987, the NBI informed the trial court that they
could not conduct the desired examination for the reason
that the standard specimens submitted were not sufficient
for purposes of rendering a definitive opinion. The NBI
then suggested that petitioner be asked to submit seven (7)
or more additional standard signatures executed before or
about, and immediately after the dates of the questioned
checks. Petitioner, however, failed to comply with this
request.
After evaluating the evidence on both sides, the court a
quo rendered judgment on May 12, 1994 with the following
dispositive portion:
“WHEREFORE, finding no sufficient basis for plaintiff’s cause

herein against defendant bank, in the light of the foregoing
considerations and established facts, this case would have to be,
as it is hereby DISMISSED.
Defendant’s counterclaim is likewise DISMISSED for lack of
sufficient basis. 7
SO ORDERED.”
Aggrieved, petitioner elevated the case to the Court of

Appeals by way of a petition for review but without success.
The appellate court held that petitioner’s own negligence

was the proximate cause of his loss. The appellate court
disposed as follows:
“WHEREFORE, the judgment appealed from is AFFIRMED.

Costs against the appellant.
8
SO ORDERED.”
Before us, petitioner ascribes the following errors to the

Court of Appeals:
A. THE COURT OF APPEALS ERRED IN NOT

HOLDING THAT THE RESPONDENT BANK IS
ESTOPPED FROM RAISING THE DEFENSE
THAT THERE WAS NO FORGERY OF THE
SIGNATURES OF THE PETITIONER IN THE
CHECK BECAUSE THE RESPONDENT
_______________
7 Ibid.
8 Id., at p. 30.
94

FILED A CRIMINAL COMPLAINT FOR ESTAFA

THRU FALSIFICATION OF COMMERCIAL
DOCUMENTS AGAINST KATHERINE EUGENIO
USING THE AFFIDAVIT OF PETITIONER
STATING THAT HIS SIGNATURES WERE
FORGED AS PART
9
OF THE
AFFIDAVITCOMPLAINT.
B. THE COURT OF APPEALS ERRED IN NOT
APPLYING SEC. 10 23, NEGOTIABLE
INSTRUMENTS LAW.
C. THE COURT OF APPEALS ERRED IN NOT
HOLDING THE BURDEN OF PROOF IS WITH
THE RESPONDENT BANK TO PROVE THE DUE
DILIGENCE TO PREVENT DAMAGE, TO THE
PETITIONER, AND THAT IT WAS NOT
NEGLIGENT IN THE SELECTION 11
AND
SUPERVISION OF ITS EMPLOYEES.
D. THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT RESPONDENT BANK SHOULD
BEAR THE LOSS, AND SHOULD BE MADE TO
PAY PETITIONER, WITH RECOURSE

12
AGAINST
KATHERINE EUGENIO ESTEBAN.
Essentially the issues in this case are: (1) whether or not

petitioner has a cause of action against private respondent;
and (2) whether or not -private respondent, in filing an
estafa case against petitioner’s secretary, is barred from
raising the defense that the fact of forgery was not
established.
Petitioner contends that Manila Bank is liable for
damages for its negligence in failing to detect the
discrepant checks. He adds that as a general rule a bank
which has obtained possession of a check upon an
unauthorized or forged endorsement of the payee’s
signature and which collects the amount of the check from
the drawee is liable for the proceeds thereof to the payee.
Petitioner invokes the doctrine of estoppel, saying that
having itself instituted a forgery case against Eugenio,
Manila Bank is now estopped from asserting that the fact
of forgery was never proven.
For its part, Manila Bank contends that respondent
appellate court did not depart from the accepted and usual
course of judicial
_______________
9 Id., at p. 10.
10 Id., at p. 14.
11 Id., at p. 15.
12 Id., at p. 17.
95
VOL. 393, NOVEMBER 27, 2002 95

proceedings, hence there is no reason for the reversal of its

ruling.
13
Manila Bank additionally points out that Section
23 of the Negotiable Instruments Law is inapplicable,
considering that the fact of forgery was never proven. 14
Lastly, the bank negates petitioner’s claim of estoppel.
On the first issue, we find that petitioner has no cause of
action against Manila Bank. To be entitled to damages,
petitioner has the burden of proving negligence on the part
of the bank for failure to detect the discrepancy in the
signatures on the checks. It is incumbent upon petitioner to
establish the fact of forgery, i.e., by submitting his
specimen signatures and comparing them with those on the
questioned checks. Curiously though, petitioner failed to

submit additional specimen signatures as requested by the
National Bureau of Investigation from which to draw a
conclusive finding regarding forgery. The Court of Appeals
found that petitioner, by his own inaction, was precluded
from setting up forgery. Said the appellate court:
We cannot fault the court a quo for such declaration, considering

that the plaintiff’s evidence on the alleged forgery is not
convincing enough. The burden to prove forgery was upon the
plaintiff, which burden he failed to discharge. Aside from his own
testimony, the appellant presented no other evidence to prove the
fact of forgery. He did not even submit his own specimen
signatures, taken on or about the date of the questioned checks,
for examination and comparison with those of the subject checks.
On the other hand, the appellee presented specimen signature
cards of the appellant, taken at various years, namely, in 1976,
1979 and 1981 (Exhibits “1”, “2”, “3” and “7”), showing variances
in the appellant’s unquestioned signatures. The evidence further
shows that the appellee, as soon as it was informed by the
appellant about his questioned signatures, sought to borrow the
questioned checks from the appellant for purposes of
_______________
13 Sec. 23. Forged signature, effect of.—When a signature is forged or made

without the authority of the person whose signature it purports to be, it is wholly
inoperative, and no right to retain the instrument, or to give a discharge therefor,
or to enforce payment thereof against any party thereto, can be acquired through
or under such signature, unless the party against whom it is sought to enforce
such right is precluded from setting up the forgery or want of authority.
14 Rollo, p. 49.
96

analysis and examination (Exhibit “9”), but the same was denied
by the appellant. It was also the former which sought the
assistance of the NBI for an expert analysis of the signatures on
the questioned checks, but the15same was unsuccessful for lack of
sufficient specimen signatures.
Moreover, petitioner’s contention that Manila Bank was

remiss in the exercise of its duty as drawee lacks factual
basis. Consistently, the CA and the RTC found that Manila
Bank employees exercised due diligence in cashing the
checks. The bank’s employees in the present case did not
have a hint as to Eugenio’s modus operandi because she

was a regular customer of the bank, having been
designated by petitioner himself to transact in his behalf.
According to the appellate court, the employees of the bank
exercised due diligence in the performance of their duties.
Thus, it found that:
The evidence on both sides indicates that TMBC’s employees

exercised due diligence before encashing the checks. Its verifiers
first verified the drawer’s signatures thereon as against his
specimen signature cards, and when in doubt, the verifier went
further, such as by referring to a more experienced verifier for
further verification. In some instances the verifier made a
confirmation by calling the depositor by phone. It is only after
taking such precautionary measures that the subject checks were
given to the teller for payment.
Of course it is possible that the verifiers of TMBC might have
made a mistake in failing to detect any forgery—if indeed there
was. However, a mistake is not equivalent to negligence if they
were honest mistakes. In the instant case, we believe and so hold
that if there were mistakes, the 16same were not deliberate, since
the bank took all the precautions.
As borne by the records, it was petitioner, not the bank,

who was negligent. Negligence is the omission to do
something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of
17
something which a
prudent and reasonable man would do. In the
_______________
15 Id., at p. 28.
16 Id., at p. 29.
17 Bank of the Philippine Islands vs. Court of Appeals, 326 SCRA 641,
657 (2000).
97
VOL. 393, NOVEMBER 27, 2002 97

present case, it appears that petitioner accorded his

secretary unusual degree of trust and unrestricted access
to his credit cards, passbooks, check books, bank
statements, including custody and possession of cancelled
checks and reconciliation of accounts. Said the Court of
Appeals on this matter:
Moreover, the appellant had introduced his secretary to the bank

for purposes of reconciliation of his account, through a letter
dated July 14, 1980 (Exhibit “8”). Thus, the said secretary became
a familiar figure in the bank. What is worse, whenever the bank
verifiers call the office of the appellant, it is the same secretary
who answers and confirms the checks.
The trouble is, the appellant had put so much trust and
confidence in the said secretary, by entrusting not only his credit
cards with her but also his checkbook with blank checks. He also
entrusted to her the verification and reconciliation of his account.
Further adding to his injury was the fact that while the bank was
sending him the monthly Statements of Accounts, he was not
personally checking the same. His testimony did not indicate that
he was out of the country during the period covered by the checks.
Thus, he had all the opportunities to verify his account as well as
the cancelled checks issued thereunder—month after month. But
he did not, until his partner asked him whether he had entrusted
his credit card to his secretary because the said partner had seen
her use the same. It was 18only then that he was minded to verify
the records of his account.
The abovecited findings are binding upon the reviewing

court. We stress the rule that the factual findings of a trial
court, especially19when affirmed by the appellate20 court, are
binding upon us and entitled to utmost respect and even
finality. We find no palpable error that would warrant a
reversal of the appellate court’s assessment of facts
anchored upon the evidence on record.
Petitioner’s failure to examine his bank statements
appears as the proximate cause of his own damage.
Proximate cause is that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening
cause, produces the injury,
21
and without which the result
would not have occurred. In the instant case, the
_______________
18 Supra, note 16.

19 Lorenzana vs. People, 353 SCRA 396, 403 (2001).
20 Ong vs. CA, 272 SCRA 725, 730 (1997).
21 Supra, note 17 at 659.
98

bank was not shown to be remiss in its duty of sending

monthly bank statements to petitioner so that any error or
discrepancy in the entries therein could be brought to the
bank’s attention at the earliest opportunity. But, petitioner
failed to examine these bank statements not because he
was prevented by some cause in not doing so, but because
he did not pay sufficient attention to the matter. Had he
done so, he could have been alerted to any anomaly
committed against him. In other words, petitioner has
sufficient opportunity to prevent or detect any
misappropriation by his secretary had he only reviewed the
status of his accounts based on the bank statements sent to
him regularly.
22
In view of Article 2179 of the New Civil
Code, when the plaintiff’s own negligence was the
immediate and proximate cause of his injury, no recovery
could be had for damages.
Petitioner further contends that under Section 23 of the
Negotiable Instruments Law a forged check is inoperative,
and that Manila Bank had no authority to pay the forged
checks. True, it is a rule that when a signature is forged or
made without the authority of the person whose signature
it purports to be, the check is wholly inoperative. No right
to retain the instrument, or to give a discharge therefor, or
to enforce payment thereof against any party, can be
acquired through or under such signature. However, the
rule does provide for an exception, namely: “unless the
party against whom it is sought to enforce such right is
precluded from setting up the forgery or want of authority.”
In the instant case, it is the exception that applies. In our
view, petitioner is precluded from setting up the forgery,
assuming there is forgery, due to his own negligence in
entrusting to his secretary his credit cards and checkbook
including the verification of his statements of account.
Petitioner’s
23
reliance on Associated Bank vs. Court 24
of
Appeals and Philippine Bank of Commerce vs. CA to
buttress his contention that respondent Manila Bank as
the collecting or last endorser generally suffers the loss
because it has the duty to ascertain the
_______________
22 Art. 2179. When the plaintiff’s own negligence was the immediate
and proximate cause of his injury, he cannot recover damages. . .
23 252 SCRA 620, 633 (1996).
24 269 SCRA 695, 703-710 (1997).
99
VOL. 393, NOVEMBER 27, 2002 99

genuineness of all prior endorsements is misplaced. In the

cited cases, the fact of forgery was not in issue. In the
present case, the fact of forgery was not established with
certainty. In those cited cases, the collecting banks were
held to be negligent for failing to observe precautionary
measures to detect the forgery. In the case before us, both
courts below uniformly found that Manila Bank’s personnel
diligently performed their duties, having compared the
signature in the checks from the specimen signatures on
record and satisfied themselves that it was petitioner’s.
On the second issue, the fact that Manila Bank had filed
a case for estafa against Eugenio would not estop it from
asserting the fact that forgery has not been clearly
established. Petitioner cannot hold private respondent in
estoppel for the latter is not the actual party to the
criminal action. In a criminal action, the State is the
plaintiff, for the 25commission of a felony is an offense
against the State. Thus, under Section 2, Rule 110 of the
Rules of Court the complaint or information filed in court is
required to be 26
brought in the name of the “People of the
Philippines.”
Further, as petitioner himself stated in his petition,
respondent bank filed the estafa case against 27
Eugenio on
the basis of petitioner’s own affidavit, but without
admitting that he had any personal knowledge of the
alleged forgery. It is, therefore, easy to understand that the
filing of the estafa case by respondent bank was a last ditch
effort to salvage its ties with the petitioner as a valuable
client, by bolstering the estafa case which he filed against
his secretary.
All told, we find no reversible error that can be ascribed
to the Court of Appeals.
WHEREFORE, the instant petition is DENIED for lack
of merit. The assailed decision of the Court of Appeals
dated January 28, 1999 in CA-G.R. CV No. 47942, is
AFFIRMED.
_______________
25 Binay vs. Sandiganbayan, 316 SCRA 65, 100 (1999).

26 SEC. 2. The complaint or information.—The complaint or
information shall be in writing, in the name of the People of the
Philippines and against all persons who appear to be responsible for the
offense involved.
27 Rollo, p. 9.
100

People vs. Solmoro, Jr.
Costs against petitioner.

SO ORDERED.
Bellosillo (Actg. C.J., Chairman), Mendoza, Austria-

Martinez and Callejo, Sr., JJ., concur.
Petition denied, judgment affirmed.
Note.—Negligence is the omission to do something

which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs
would do or the doing of something which a prudent and
reasonable man would not do. (Jarco Marketing
Corporation vs. Court of Appeals, 321 SCRA 375 [1999])
——o0o——
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9/14/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 393

VOL. 393, NOVEMBER 27, 2002 89

RAMON K. ILUSORIO, petitioner, vs. HON. COURT OF

Civil Law; Damages; Negligence; To be entitled to damages,

Proximate Cause Defined.—Petitioner’s failure to examine his

90 SUPREME COURT REPORTS ANNOTATED

Ilusorio vs. Court of Appeals

be remiss in its duty of sending monthly bank statements to

PETITION for review on certiorari of a decision of the

The facts are stated in the opinion of the Court.

VOL. 393, NOVEMBER 27, 2002 91

Puyat, Jacinto & Santos and Asedillo and Associates for

bank, with an aggregate amount of P119,634.34. Petitioner

1 Rollo, pp. 26-30.

92 SUPREME COURT REPORTS ANNOTATED

That I have examined and scrutinized the following checks in

Petitioner then requested the respondent bank to credit

At the trial, petitioner testified on his own behalf,

4 TSN, October 6, 1983, p. 58.

VOL. 393, NOVEMBER 27, 2002 93

tures appearing on the checks. However, in a letter dated

“WHEREFORE, finding no sufficient basis for plaintiff’s cause

Aggrieved, petitioner elevated the case to the Court of

The appellate court held that petitioner’s own negligence

“WHEREFORE, the judgment appealed from is AFFIRMED.

Before us, petitioner ascribes the following errors to the

A. THE COURT OF APPEALS ERRED IN NOT

94 SUPREME COURT REPORTS ANNOTATED

FILED A CRIMINAL COMPLAINT FOR ESTAFA

PAY PETITIONER, WITH RECOURSE

Essentially the issues in this case are: (1) whether or not

VOL. 393, NOVEMBER 27, 2002 95

proceedings, hence there is no reason for the reversal of its

questioned checks. Curiously though, petitioner failed to

We cannot fault the court a quo for such declaration, considering

13 Sec. 23. Forged signature, effect of.—When a signature is forged or made

96 SUPREME COURT REPORTS ANNOTATED

Moreover, petitioner’s contention that Manila Bank was

have a hint as to Eugenio’s modus operandi because she

The evidence on both sides indicates that TMBC’s employees

As borne by the records, it was petitioner, not the bank,

VOL. 393, NOVEMBER 27, 2002 97

present case, it appears that petitioner accorded his

Moreover, the appellant had introduced his secretary to the bank

The abovecited findings are binding upon the reviewing

18 Supra, note 16.

98 SUPREME COURT REPORTS ANNOTATED

bank was not shown to be remiss in its duty of sending

VOL. 393, NOVEMBER 27, 2002 99

Ilusorio vs. Court of Appeals

genuineness of all prior endorsements is misplaced. In the

25 Binay vs. Sandiganbayan, 316 SCRA 65, 100 (1999).

100 SUPREME COURT REPORTS ANNOTATED

Costs against petitioner.

Bellosillo (Actg. C.J., Chairman), Mendoza, Austria-

Petition denied, judgment affirmed.

Note.—Negligence is the omission to do something

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